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Court of Appeal:
No ‘Brightline Rule’ That Gun Must Be Loaded for Assault
Opinion Says Offense May Be Supported by Evidence That Perpetrator Had Ammunition Readily Available to Load, Ability to ‘Shoot Immediately,’ Noting Disagreement With Model Instruction Comments
By Kimber Cooley, associate editor
Div. One of the Fourth District Court of Appeal held yesterday that there is no brightline rule requiring a gun to be loaded for an assault with a firearm to be committed if ammunition is readily available and the defendant possesses the means to load and shoot the weapon “immediately.”
Saying the question of whether a defendant is “too many steps away from inflicting injury to have the present ability to commit assault” is one for the jury, the court declined to announce that an unloaded firearm is a complete defense in all circumstances.
In an opinion authored by Justice Truc T. Do, and joined in by Presiding Justice Judith McConnell and Justice Terry B. O’Rourke, the court said:
“In reaching this holding, we acknowledge our disagreement with the Judicial Council of California Criminal Jury Instructions. One of the practice notes for CALCRIM No. 875, the model instruction for assault, states a ‘gun must be loaded unless used as [a] club or bludgeon’ in order ‘to have [the] present ability to inflict injury.’….We respectfully disagree and suggest the authors reconsider the note.”
Appealing his conviction for assault with a firearm was Stephen Lattin, who was convicted in April of last year of one count of violating Penal Code §245(a)(2) and related gun enhancements. He was sentenced to nine years and four months in prison by San Bernardino Superior Court Judge Melissa Rodriguez.
Incident With Shotgun
The charges at issue arose out of an April 5, 2017 incident at a gas station in Helendale during which Lattin pointed a 12-gauge shotgun at a family. Multiple witnesses testified that he was “pumping” the shotgun, but no one could clearly determine if it was loaded. A group of Lattin’s friends happened upon the location and convinced the defendant to hand over the weapon.
Responding deputies with the San Bernardino County Sheriff’s Department searched the friends’ vehicle and discovered an unloaded 12-gauge, pump-action shotgun in the trunk along with three compatible, live cartridges in a cup holder near the center console, just behind the gear shift.
Detective Malcolm Page, a firearms expert, testified that it would only take “a second or two” for someone familiar with the gun to render it “ready to fire.” Lattin testified that he retrieved the unloaded gun from the trunk of his car after others in the parking lot, with whom he had past encounters, approached him.
During the trial, Rodriguez declined to give a pinpoint instruction which provided that an assault with a deadly weapon is not committed by “pointing an unloaded gun in a threatening manner” at another person.
Present Ability
Do noted that an “unlawful assault” is defined in California as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another” and that the “present ability” element is satisfied when a defendant has the means and ability to “strike immediately.”
The jurist cited cases in which courts have found the “present ability” element to be met where there was no round in the firing chamber, where the gun jammed, and one in which the perpetrator pointed the firearm in the wrong direction. She opined:
“Extending the logic and holdings of [these cases], we disagree with Lattin and conclude there is no brightline rule in California that a gun must be loaded to commit an assault unless it is used as a club or bludgeon. It is not the case that assault by shooting can never be committed with an unloaded gun as a matter of law. If ammunition is readily available, it is a question for the jury whether a defendant with an unloaded gun possesses the means to load it and shoot immediately, or whether he is too many steps away from actually inflicting injury to have the present ability to commit assault.”
Looking at the facts of the present case, she remarked:
“Here, for example, the jury was entitled to credit Detective Page, the prosecution’s gun expert, and conclude that even if Lattin’s shotgun was unloaded when he aimed it at the various witnesses at various points in time, if he had cartridges with him, he would have had the ability to load the shotgun and rack it in ‘a second or two.’ Based on this expert testimony, it would appear Lattin could have loaded his weapon and prepared to fire it in far less time than [has been deemed permissible in other cases].”
Lee Kong Case
The defendant cited the 1892 California Supreme Court case of People v. Lee Kong in support of his proposed brightline rule.
Do acknowledged that “Lee Kong is often cited (without analysis) as the original source for Lattin’s suggested brightline rule” but commented that “we do not read Lee Kong to have such a broad holding.” She remarked:
“[T]he Lee Kong court considered case law in other jurisdictions that addressed whether an assault can be committed with an unloaded gun. Important here, the Court considered these cases in the abstract. The defendant in Lee Kong successfully shot a loaded gun through his roof….The case did not involve an unloaded gun.”
Saying that “Lee Kong is a case from another era, one where Lattin’s fast-loading, pump-action shotgun would be science fiction,” she concluded:
“[W]e understand the line of authority cited by Lattin to hold that menacing a person with an unloaded gun and the apparent ability to inflict injury—by itself—is not enough to commit criminal assault….Under the right circumstances, proof that a firearm was unloaded can be a complete defense to charges of assault…But it is not a complete defense in all circumstances as a matter of law.”
Ammunition Readily Available
Turning to the evidence presented, Do reasoned:
“[T]he prosecution’s theory of the case was the shotgun was either loaded, or if not loaded, Lattin had ammunition readily available and could load it within seconds….Witnesses saw Lattin hand the shotgun to his friends in the black Mazda, and police found not only the shotgun but also three ‘compatible’ live cartridges in that car. Accordingly, there was circumstantial evidence that Lattin had three live cartridges on his person—either in a pocket or contained in the fabric cartridge holder attached to the shotgun’s folding stock—and that this gave him the ability to swiftly load and shoot his modern-day weapon as he pointed it at [the victim].”
She acknowledged that “[t]he standard instruction (CALCRIM No. 875) did not fully and adequately advise the jury on the element of present ability” but said the deficit was cured by “the trial court correctly instruct[ing] the jury with a revised pinpoint instruction in response to its questions during deliberations about the present ability element.”
The case is People v. Lattin, 2024 S.O.S. 3704.
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